PER CURIAM: Petitioners have filed a petition for a
writ of certiorari seeking review of an order of the circuit court allowing
respondents to contact nonparty patients of petitioners. We grant the
petition, dispense with further briefing, and vacate the order of the circuit
court.

This matter
involves three actions filed against petitioners for medical malpractice,
fraud, and breach of contract arising out of LASIK eye surgeries. By order
dated November 14, 2008, the circuit court compelled petitioners to respond to
respondents’ discovery requests, including the production of the medical
records of several nonparty patients treated at petitioners’ facilities. At
the same time, a Protective Order was issued to prohibit the use of
confidential information obtained through the medical records and to prohibit
any person from contacting the nonparty patients or their medical providers. Petitioners
complied with the orders and provided unredacted copies of the medical records
of the nonparty patients.

On February 17,
2009, respondents filed a motion to modify the Protective Order to allow them
to contact and interview nonparty patients of petitioners whose identity and
medical records were disclosed pursuant to the November 14th order.
By order dated April 21, 2009, the circuit court found respondents were
entitled to interview the nonparty patients subject to the privacy safeguards
set forth in the Protective Order.

Petitioners first
sought a writ of certiorari to review the April 21st order. This
Court granted the petition for a writ of certiorari and remanded the matter to
the circuit court to address whether the
interviews with the nonparty patients were necessary to respondents’claims. Hollman v. Woolfson,
Op. No. 2009-MO-025 (S.C. Sup. Ct. filed May 28, 2009).

On remand, the circuit court
found the interviews were necessary for respondents’
fraud cause of action, Unfair Trade Practices Act (UTPA) cause of action, and
in order for respondents to meaningfully respond to petitioners’ defenses of
the statute of frauds and the statute of repose. Petitioners now seek
another writ of certiorari to review the decision of the circuit court.

A writ of certiorari may be
issued to review a discovery order where exceptional circumstances exist. Laffitte
v. Bridgestone Corp., 381 S.C. 460, 674 S.E.2d 154 (2009). This matter presents exceptional circumstances which warrant the
issuance of a writ of certiorari. Allowing the interviews will moot any claim
petitioners could raise on appeal that the discovery was erroneously allowed.
In addition, the privacy rights of patients is an issue of significant public
interest, and issues involving the release of patient information in discovery
is arising more often in the courts. Accordingly, we grant the petition for a
writ of certiorari and dispense with further briefing.

On certiorari,
this Court will review only errors of law and will not review factual findings
unless wholly unsupported by the evidence. S.C. Bd. of Exam’rs in Optometry
v. Cohen, 256 S.C. 13, 180 S.E.2d 650 (1971). A trial judge’s rulings on
discovery matters will not be disturbed by an appellate court absent a clear
abuse of discretion. Dunn v. Dunn, 298 S.C. 499, 381 S.E.2d 734 (1989).

Rule 26(b)(1), SCRCP,
provides, unless otherwise limited by order of the court, “[p]arties may obtain
discovery regarding any matter, not privileged, which is relevant to the
subject matter involved in the pending action . . . It is not ground for
objection that the information sought will be inadmissible at the trial if the
information sought appears reasonably calculated to lead to the discovery of
admissible evidence.” If the discovery process threatens to become abusive or
create a particularized harm to a litigant or third party, the trial judge may
issue an order “to protect a party or person from annoyance, embarrassment,
oppression, or undue burden by expense.” Rule 26(c), SCRCP; Hamm v. S.C.
Pub. Serv. Comm’n, 312 S.C. 238, 439 S.E.2d 852 (1994). If a person
requesting a protective order shows a particularized harm which will be caused
by allowing the discovery, the opposing party has the burden of showing the
information sought is “relevant and necessary” to the case. Laffitte v.
Bridgestone Corp., supra;Hamm v. S.C. Pub. Serv. Comm’n, supra.
In determining whether a protective order is necessary, the trial judge is
required to weigh the factors of whether the information sought is “relevant
and necessary” evidence against any particularized harm the opposing party may
suffer. Laffitte v. Bridgestone Corp., supra; Hamm v. S.C. Pub. Serv.
Comm’n, supra. In determining whether information is necessary, the party
seeking the information must “demonstrate with specificity exactly how the lack
of information will impair the presentation of the case on the merits to the
point that an unjust result is a real, rather than a merely possible, threat.” Laffitte v. Bridgestone Corp., 674 S.E.2d at 163. The trial court must
determine whether there are reasonable alternatives available to discover the
information. Id.

As to the requirement of
particularized harm, no protective device can limit the invasion of the
nonparty patients’ privacy once contact with them is permitted. The nonparty
patients have a valid and legitimate expectation that their medical information
will remain confidential which outweighs respondents’ intent to use this
personal information to buttress their claims by showing a propensity by
petitioners for malpractice. Petitioners have shown particularized harm to the
nonparty patients which will arise if the interviews are permitted. Both the
State and Federal government have recognized the importance of the privacy
rights of patients. Therefore, respondents must show the information sought
from the interviews is relevant and necessary to the case.

As to the requirement that the information sought be relevant, this
Court has held the information must be specifically relevant to the issues
involved in the litigation, not merely relevant to the subject matter of the
litigation. Lafitte v. Bridgestone Corp. supra.

The circuit court judge found
respondents’ “methodology by which [they have] restricted its interview
requests provides a substantial basis for the relevancy.” He found “the
ability to interview [the nonparty patients] and discuss their individual
experiences at TLC along with those of [respondents] is relevant under Rule
SCRCP 26 [sic] and permissible except to the extent that good cause exists to
restrict discovery of this information and these witnesses.” The judge further
found the information sought was directly related to the issues central to
respondents’ malpractice claims. He stated the discovery of other patients
with problems and treatment similar to respondents’ problems is clearly relevant
since a central issue in the malpractice claims is “the applicable standard of
care as it evolved during and after the time of [respondents’] surgeries.”

A claim for malpractice
requires a showing of the standard of care, a breach of the standard of care,
proximate cause, and damages. Doe
v. Am. Red Cross Blood Servs., 297 S.C. 430, 377 S.E.2d 323 (1989). The standard of care which must be observed by a physician is that of
an average, competent practitioner acting in the same or similar circumstances. Id.

The evidence relating to
treatment of the nonparty patients is irrelevant to respondents’ negligence claims
in that it cannot be used to show petitioners breached the standard of care
with a particular patient. Accordingly, the circuit court erred in finding
the interviews with the nonparty patients were relevant to the causes of action
for malpractice. Whether petitioners breached the standard of care with any
patients other than respondents is irrelevant to whether petitioners were
negligent in their treatment of respondents.

A cause of action for fraud
requires: (1) a representation of fact; (2) its falsity; (3) its materiality;
(4) either knowledge of the falsity of the representation or reckless disregard
of its truth or falsity; (5) the intent that the representation be acted on;
(6) the hearer’s ignorance of the falsity of the representation; (7) the
hearer’s reliance on the truth of the representation; (8) the hearer’s right to
rely on the representation; and (9) the hearer’s consequent and proximate
injury. Schnellmann v. Roettger, 373 S.C. 379, 645 S.E.2d 239 (2007).

There is no evidence that any
of the nonparty patients were victims of fraud. The treatment received by the nonparty patients is irrelevant to
respondents’ causes of action for fraud. Whether other patients were similarly
treated does not prove any of the elements required to show fraudulent conduct
by petitioners toward respondents.

To establish a cause of
action under the UTPA, the plaintiff must prove unfair or deceptive acts or practices in
the conduct of any trade or commerce. S.C. Code Ann. § 39-5-20(a)
(1985). The unfair or deceptive act or practice must affect the
public interest.Singleton v. Stokes Motors, Inc.,
358
S.C. 369, 595 S.E.2d 461 (2004). An impact on the public interest may be shown if the acts or
practices have the potential for repetition. Id. The
potential for repetition may be proven by showing: (1) the same kind of actions
occurred in the past, thus making it likely they will continue to occur absent
deterrence; or (2) the defendant’s procedures created a potential for
repetition of the unfair and deceptive acts. Id.

Although evidence of
petitioners’ treatment of nonparty patients could be relevant for the UTPA
cause of action, as discussed below, the evidence is not necessary for
respondents to establish that cause of action.

In determining whether
information is necessary, the party seeking the information must “demonstrate
with specificity exactly how the lack of information will impair the
presentation of the case on the merits to the point that an unjust result is a
real, rather than a merely possible, threat.” Laffitte v. Bridgestone
Corp., 674 S.E.2d at 163. The trial court must determine whether there are
reasonable alternatives available to discover the information. Id.

The circuit court found that
respondents allege petitioners engaged in a corporate-wide scheme to conceal
the harm done to respondents and other patients and to delay the disclosure of
crucial information beyond the applicable statutes of limitations and/or
repose. The judge found the information sought from other patients is
necessary because the alleged scheme is based on the institutional quality of
petitioners’ knowledge of the falsity of their representations and their
knowledge that the representations would be relied on by a significant number
of patients. However, the circuit court failed to make specific findings as to
how the lack of information would impair respondents’ case.

Respondents may pursue their
claims against petitioners without interviewing petitioners’ nonparty
patients. Respondents failed to demonstrate with specificity what information
they seek or how the lack of interviews with the nonparty patients will impair
the presentation of their case to the extent that an unjust result is a real
threat. Further, there is no evidence that there are no other reasonable
alternatives available to respondents to discover the information they seek
from the nonparty patients.

The circuit court committed
an abuse of discretion in determining the interviews with the nonparty patients
were necessary. Petitioners’ treatment of other patients is not necessary to
establish any element of respondents’ causes of action. In fact, no
information obtained in the interviews could establish whether petitioners
breached the standard of care when treating respondents or committed fraud on
respondents. As to the UTPA cause of action, the circuit court did not make a
specific finding as to exactly how the lack of information obtained from the
interviews would impair respondents’ presentation of the merits of that cause
of action or that there were no reasonable alternatives available to discover
the information. Laffitte v.
Bridgestone Corp.,supra.
Accordingly, the record does not support the finding that the interviews are
necessary for the UTPA cause of action.

Further, it would be
inequitable to allow respondents to obtain nonparty patient information from
petitioners with the understanding the patients would not be contacted, only to
subsequently permit respondents to contact the patients. Had the provision of
the Protective Order prohibiting respondents from contacting petitioners’
patients not been included, there is a possibility petitioners would not have
disclosed the patient records, would have sought to redact the records, and/or
would have sought review of the order requiring the disclosure by writ of
certiorari or by refusing to comply with the order and appealing a contempt
citation. Therefore, the order of the circuit court allowing respondents to
interview the nonparty patients is